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The Mens Rea of Accomplice Liability: Supporting Intentions

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The Mens Rea of Accomplice Liability: Supporting Intentions SHERIF GIRGIS The Mens Rea of Accomplice Liability: Supporting Intentions ABSTRACT. Accomplice liability makes someone guilty of a crime he never committed, so long as he helped or influenced the perpetrator and did so with the required mens rea. Just what that mens rea should be has been contested for more than a century. Here I consider three major approaches and find them all wanting. I propose rejecting their common (but rarely questioned) assumption that what matters is the helper's mental state toward the perpetrator's commission of an offense. I suggest considering instead his stance toward the perpetrator's intention to act: a helper is an accomplice, on this view, if he (a) intends to see to it that the principal form or keep his own plan to commit an offense and (b) does not intend or expect that plan's frustration. This standard better justifies imposing accomplice liability. It more precisely picks out those helpers culpable for the perpetrator's very offense. And this parity of guilt is the best-perhaps the only good-basis for imposing the same liability on accomplice and principal, in a system so retribution-driven as to choose to do so at all. AUTHO R. Yale Law School, J.D. expected 2016; Princeton University, Ph.D. expected 2016; University of Oxford, B.Phil. 2010; Princeton University, A.B. 2008. This Note was born of a stimulating seminar with Facundo Alonso; matured with exceptional help from Gideon Yaffe, John James Snidow, John Lewis, and Ben Eidelson; and owes its weaknesses to the author. 46o NOTE CONTENTS INTRODUCTION 462 1. OVERVIEW OF ACCOMPLICE LIABILITY 465 II. THREE PRIOR PROPOSALS 468 A. Historical Approaches 468 B. A Recent Proposal: Splitting Intentions 470 1. Splitting Intentions 470 2. Objections 472 III. A NEW WAY FORWARD 473 A. Proposal 473 B. Rationale 478 C. Comparison with Traditional Rationales 482 IV. CONCRETE IMPLICATIONS 484 A. Fit with Other Features ofAccomplice Liability 484 B. Fit with Case Law 485 V. OBJECTIONS 487 A. A Single Standard? 487 B. Under-inclusive? 489 C. Incompatible with the Actus Reus Requirement or Derivative Nature ofAccomplice Liability? 491 CONCLUSION 494 461 THE YALE LAW JOURNAL 123:46o 2013 INTRODUCTION Accomplice liability poses an enduring puzzle. It invites the state to convict people of crimes they did not commit. Across the United States, a person can be convicted of grand larceny without pilfering a dime and jailed for first- degree murder without drawing a drop of blood. This might seem like a gross miscarriage of justice, but it is black-letter law: anyone deemed an "accomplice" to a crime can be convicted of it as if he had perpetrated it himself.' What is the moral logic of a law by which one person can be convicted of another's crime -simply for lifting a finger to help him, or for offering an encouraging word? Unsurprisingly, this question has beset courts and commentators for more than a century. Especially controversial is the proper mens rea standard for complicity: Say Cassius helps or encourages Brutus to murder Caesar. Before the law holds Cassius liable as Brutus's accomplice, what attitude should it require him to have toward Brutus's lethal act, or some aspect of it? In this Note, I defend a new answer. After tracing accomplice liability's broad outlines in Part I, I discuss in Part II three prominent contenders for its mens rea requirement. First, some laws require just that the accomplice know that his action will help the principal commit the crime. Second, others require that the accomplice intend to promote the principal's act. Neither has achieved a steady victory in law: [I]s simple knowledge enough? Yes, said the Supreme Court in . 1870; no, said Judge Learned Hand in Peoni in 1938; yes, implied the Supreme Court in 1947; no, said the Supreme Court in 1949; yes, if it is accompanied by an act that substantially facilitates the commission of the underlying offense, said the Supreme Court in 1961; usually, said 1. See, e.g., 18 U.S.C. 5 2(a) (2012) ("Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."); FLA. STAT. ANN. § 7rr.oi1 (West 2013) ("Whoever .. aids, abets, counsels, hires, or otherwise procures [an] offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense."); MoNT. CODE ANN. § 45-2-302 (2011) (making someone liable for another's conduct when "either before or during the commission of an offense with the purpose to promote or facilitate the commission, the person solicits, aids, abets, agrees, or attempts to aid the other person in the planning or commission of the offense"). 462 THE MENS REA OF ACCOMPLICE LIABILITY the Second Circuit in 1962; only if knowledge is enough for the underlying offense, said the Second Circuit in another case in 1962; sometimes, said the Seventh Circuit in 1985; always, implied the Seventh Circuit in 1995; no, said the Second Circuit in 1995 and the Seventh Circuit in 1998. And finally, Gideon Yaffe has proposed another standard to resolve this contest between knowledge and purpose: the accomplice must intend that the principal commit the crime, but this intention need not dispose him to promote the principal's crime. I argue against all three proposals. In Part III, I offer a new one. The options canvassed in Part II assume that what matters is the accomplice's mental state with respect to the principal's commission of the crime. I would scrap this premise. What should make someone an accomplice, I argue, is his stance toward the principal's intention to commit the offense. To be an accomplice, one must intend that someone else form (or keep) his own plan to commit a crime, without expecting or intending for that plan to be frustrated.' This standard more precisely matches the kind of investment that might make accomplices of mere helpers. In this and other ways, as I show in Part IV, it better justifies important features of complicity law. I address objections in Part V. What I do not build is a ground-up defense of having accomplice liability. Any such grand theory must rest on a theory of punishment: Where liability should be imposed depends on where punishment is justified. So whether we should have accomplice liability depends on how it would serve the justifying goals of the criminal justice system-be they deterrence, rehabilitation, retribution, some combination of these, or other aims entirely. Is deterrence the main or only licit point of fining and jailing? Then accomplice liability as we know it should be retired: convicting helpers even when they causally contribute nothing to a crime, as our law does,4 is hardly the most efficient way to minimize the amount of blood spilled and money embezzled. By contrast, the more one cares about rehabilitation, the more one will want the criminal law to bring into its curative sweep anyone who has certain attitudes toward crime and its harms, as accomplice liability largely does. 2. Baruch Weiss, What Were They Thinking?: The Mental States of the Aider and Abettor and the Causer Under FederalLaw, 70 FORDHAM L. REV. 1341,1351-52 (2002) (footnotes omitted). 3. Here I use "plan" as synonymous with "intention." On understanding intentions as plans, see infra note 35 and accompanying text. 4. See infra Part I. 463 THE YALE LAW JOURNAL 123:460 2013 For the retributivist, finally, punishment must contribute to justice. And it does that only when the punished deserve it, when they are sufficiently culpable.s On this view, a criminal's choice to disrupt social order, callous to its value, does not just cause the injustice set right by law. For retributivists, rather, a guilty mind partly constitutes that injustice. This view need not require banning pure mental states.6 The point is that a criminal's will to exercise more than his fair share of liberty -his insensitivity to the reasons for obeying some law-is part of the harm that punishment (which limits liberty) is meant to correct. Without this culpability, this disregard of reasons, harmful behavior is not the sort of social ill that normally justifies punishment. In short, a guilty mind - expressed in conduct - involves an arrogation of freedom beyond the law's reasoned bounds, an arrogation central to the retributivist basis for punishment.! Retributivist theories will therefore be most congenial to accomplice liability, and to my proposal for its mens rea standard: both concentrate on culpability in justifying liability schemes. It is not my purpose to argue that our law does or should forge such tight links between punishment and blameworthiness, much less that it should do so by the peculiar tool of accomplice liability. What I aim to offer is the best mens rea standard for such liability, given its practice of convicting a helper for another's crimes, whether or not his help did actual harm. In other words, this Note will assume that accomplice liability (in that sense) is worth having -and hence that liability should closely track culpability.9 With these points fixed, it s. Tison v. Arizona, 481 U.S. 137, 149 (1987) ("The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender."). 6. See infra Section V.C.
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